IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DEPARTMENT OF LABOR AND ) No. 79395-1 -I INDUSTRIES, ) ) DIVISION ONE Appellant, v. ) PUBLISHED OPINION ) RITO BRISENO,
Respondent. ) FILED: February 18, 2020 _____________________________________________________________________________________ ) ANDRUS, J. — In these three consolidated cases, the Department of Labor
and Industries (Department) appeals trial court rulings that employers were entitled
to wage reimbursement under RCW 51.32.090’s Stay-at-Work Program after
obtaining retroactive medical approval of light duty job descriptions offered to their
injured workers.
We conclude that the statute does not prohibit retroactive medical approval
of light duty work, as long as the injured worker’s provider has released the worker
to remain at, or return to, work. We affirm the trial court’s order directing the
Department to reimburse employers Kemp West and One Way Plumbing. We
reverse the trial court’s order as to Sequoyah Electric because the record does not
support the finding that Sequoyah Electric had a release from its worker’s medical
provider before employing that worker in light duty work. No. 79395-1 -1/2
FACTS
In 2011, the Washington Legislature created the Stay-at-Work Program to
encourage employers to offer light or modified duty work to injured workers. Laws
of 2011, Spec. Sess., ch. 37 § 101. The legislature found that the cost of long- term disability and injuries is significantly reduced when injured workers remain at
work following their injury. RCW 51.32.090(4)(a). The Stay-at-Work program
authorizes the Department to provide wage reimbursement, up to a maximum
amount, to employers who allow injured workers to remain at, or return to, work in
a light duty or modified work position. RCW 51 .32.090(4)(c).
Under RCW 51.32.090(4)(b), if workers are entitled to temporary total
disability under the Industrial Insurance Act, their employer may request that the
workers be certified by their medical provider to perform light or modified work
duties. The statute requires the employer to furnish the worker’s medical provider
with “a statement describing the work available” and the medical provider “shall
then determine whether the worker is physically able to perform the work
described.” The Department continues to pay temporary total disability until the
worker begins this light or modified work.
Wage subsidies are available for the employers when:
(h) . . the employer has completed and submitted the .
reimbursement request on forms developed by the department. . .
In no event shall an employer receive wage subsidy payments or reimbursements of any expenses pursuant to this subsection (4) unless the worker’s [medical provider] has restricted him or her . . .
from performing his or her usual work and the worker’s [medical provider] has released him or her to perform the work offered. . . .
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If an employer directs an injured worker to perform work other than that
approved by the worker’s medical provider, that employer may not receive any
wage subsidy. RCW 51 .32.090 ~).
Three employers, Kemp West, Inc., Seq uoyah Electric, LLC, and One Way
Plumbing, LLC, offered light duty to their employees, Rito Briseno, Robert
Sturgeon, and Josue Gonzalez Hernandez, respectively, after each sustained an
on-the-job injury.
1. Kemr West, Inc.
On November 24, 2014, Kemp West employee Rito Briseno sustained an
on-the-job injury and became eligible for total disability. The next day, Briseno’s
medical provider completed a Department-issued Activity Prescription Form
(APF),1 in which the provider released Briseno to perform modified light duty work,
if available, from November 25 until Briseno’s follow-up appointment on November
30. The APF listed specific physical restrictions and limitations, such as restricting
Briseno from climbing a ladder or stairs and from performing work above the
shoulders, as well as limiting his ability to lift and carry items. Briseno returned to
work with Kemp West that same day in a modified light duty job consistent with the
restrictions listed in the APE.
Briseno’s medical provider completed a new APF during Briseno’s
November 30 follow-up visit, which authorized Briseno to continue the light duty
job consistent with the same restrictions until his next visit on December 8.
1 An Activity Prescription Form, or APF, is a form issued by the Department and is to be completed by a medical provider to communicate the employee’s ability to work, functional capacities, physical restrictions, and treatment plan. https://lni.wa.gov/claims/for-medical providers/activity-prescription-form.
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On December 4, 2014, Kemp West sent Briseno’s medical provider a
written description of the specific light duty job Briseno had been performing, and
it notified the provider that Briseno had started the light duty job on November 25.
On December 8, Briseno’s medical provider agreed in writing that Briseno was
able to perform the light duty job and was able to do so as of November 25. Briseno
continued working in the modified light duty job through February 13, 2015.
On July 30, 2015, Kemp West filed an application for wage reimbursement
benefits under the Stay-at-Work Program, noting that Briseno had worked a light
duty job for 52 calendar days. The Department approved Kemp West’s request
for wage reimbursement from December 4, 2014 to February 13, 2015, but it
denied the request for November 24-25 and December 1-3, 2014. It based this
partial denial on the fact that Kemp West had not sent the specific job description
to Briseno’s medical provider for her approval before December 4, 2014.
Kemp West, through its retrospective rating group, Approach Management
Services (AMS), appealed the Department’s decision to the Board. An industrial
appeals judge (IAJ) reversed the Department’s decision, reasoning that the
purpose of the Stay-at-Work program is to provide for uninterrupted work in the
event an employee is injured and that neither the statute nor the Department’s
regulation prohibited retroactive approval of a light duty job description. The Board
declined to review the IAJ’s order.
2. Seciuoyah Electric, LLC
On September 10, 2014, the Department deemed Robert Sturgeon eligible
for total disability based on the carpal tunnel syndrome he had sustained while
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working for Sequoyah Electric. On September 12, 2014, Sturgeon’s medical
provider completed an APF, which indicated that he was not released to perform
any work from September 16 to October 20, 2014, and indicated other physical
restrictions he would need when he returned to work. Nevertheless, on
September 16, 2014, Sturgeon returned to Sequoyah Electric in a light duty job
consistent with the restrictions listed on the APF.
During a follow-up visit on September 22, Sturgeon’s medical provider
released him to work in a light or modified duty job from September 22 to October
22. The medical provider issued a new APE, in which he restricted Sturgeon from
climbing a ladder or stairs and from crawling, as well as limiting the activities
Sturgeon could do with his left arm, shoulder, and wrist. The medical provider also
noted that Sturgeon had been working a light duty job and could continue to do so.
On October 14, Sequoyah Electric provided Sturgeon’s medical provider
with a written description of the specific light duty job that Sturgeon had been
performing since September 16. Sturgeon’s medical provider approved the job
description the next day, October 15, with the approval retroactive to
September 22.
When Sequoyah Electric applied for wage reimbursement benefits on
October 30, it noted that Sturgeon had worked in a light duty job from September
16 to October 14, 2014, for a total of 21 days. The Department determined that
Sequoyah Electric was ineligible for reimbursement for 20 of those days,
September 16 to October 13, 2014, because it had not sent the specific job
description to Sturgeon’s medical provider until October 14.
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On March 16, 2015, Sturgeon’s medical provider retroactively approved the
job description of the light duty job, this time indicating that Sturgeon could perform
it from September 16 to November 17, 2014. The Department again denied
reimbursement for September 16-19, but for some reason, it reimbursed Sequoyah
Electric for the remaining dates, September 22 to October 14. The Department’s
denial for the initial four days was based again on Sequoyah Electric’s failure to
provide Sturgeon’s medical provider with a job description of the light duty work
before Sturgeon began the job.
Sequoyah Electric appealed the Department’s order to the Board. On
June 14, 2016, an IAJ affirmed the Department’s order denying wage
reimbursement benefits from September 16 to September 19, 2014, because
Sequoyah Electric’s request for retroactive approval of the Hght duty job description
did not comply with the steps required by the statute to obtain wage reimbursement
benefits.
Sequoyah Electric, through its workers compensation manager, AMS,
sought Board review of the June 14 order. The Board reversed the IAJ’s June 14
order and the Department’s order, again reasoning that requiring medical provider
approval of a specific job description before allowing an injured worker to return to
work would undermine the effectiveness of the Stay-at-Work Program.
3. One Way Plumbing, LLC
On November 22, 2014, One Way Plumbing employee Josue Gonzalez
Hernandez sustained an on-the-job injury and became eligible for total disability.
Gonzalez Hernandez’s medical provider initially restricted him from doing any type
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of work. On December 8, 2014, his medical provider released him to work a light
duty job with specific physical restrictions and limitations from December 8, 2014,
until February 2, 2015. The medical provider completed an APE, restricting
Gonzalez Hernandez from performing work above his shoulders and listed
permissible and impermissible uses of his injured left wrist. Gonzalez Hernandez
returned to work in a light duty job consistent with his provider’s restrictions on
December 17.
During a follow-up visit on January 12, 2015, Gonzalez Hernandez’s
medical provider adjusted his restrictions and limitations, and the provider
completed a new APE. Gonzalez Hernandez saw his medical provider for another
follow-up visit on February 9, 2015, and the provider noted that he was “back to
work doing light construction duties” and that he was to “[cjontinue [the] modified
duties for the next 6 weeks.”
On February 10, 2015, One Way Plumbing sent a written description of the
specific light duty job that Gonzalez Hernandez had been performing since
December 17, 2014 to his medical provider. On April 28, 2015, Gonzalez
Hernandez’s medical provider approved the light duty job and agreed that he could
have performed the job as of December 12, 2014.
When One Way Plumbing applied for wage reimbursement benefits on
May 5, 2015, it noted that Gonzalez Hernandez had worked in a light duty job for
several working periods between December 17, 2014 and March 30, 2015, and it
requested reimbursement for 66 days of light duty work, the statutory maximum.
On May 28, 2015, the Department denied reimbursement for 32 of those days,
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December 17, 2014 through February 7, 2015, reasoning that it could not
reimburse One Way Plumbing for the dates before the job description was
communicated to Gonzalez Hernandez’s medical provider. It paid reimbursement
benefits for the remaining days.
One Way Plumbing appealed the Department’s denial of reimbursement
benefits. On June 14,2016, an IAJ affirmed the Department’s order denying wage
reimbursement benefits for the work periods between December 17, 2014 and
February 7, 2015, agreeing with the Department that the statute, although unclear,
outlined the proper timing of the steps required to obtain wage reimbursement
benefits and that One Way Plumbing had not complied with these steps.
One Way Plumbing, through its workers compensation manager, AMS,
sought Board review of the IAJ’s June 14 order. The Board reversed.
The Department appealed the three Board rulings to superior court. On
September 7, 2017, the trial court consolidated these appeals, and on December
12, it issued three identical orders affirming the Board. The trial court concluded
that “RCW 51 .32.090(4) requires that the employer at injury must offer the injured
worker light duty work that is approved by the worker’s attending provider, but such
approval of a formal written job description can be retroactive for purposes of an
employer’s entitlement to wage reimbursement benefits.” The Department
appeals.
STANDARD OF REVIEW
On appeal, this court reviews judgments under the Industrial Insurance Act,
Title 51 RCW, as in other civil cases and reviews the decision of the superior court,
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not that of the Board. RCW 51 .52.140; see also De~’t of Labor and Indus. v.
Cascadian Bldg. Maint., Ltd, 185 Wn. App. 643, 647, 342 P.3d 1185 (2015).
This appeal requires us to interpret RCW 51 .32.090. The interpretation of
a statute is a question of law reviewed de novo. Cockle v. Dep’t of Labor & Indus.,
142 Wn.2d 801, 807, 16 P.3d 583 (2001). If a statute is plain and unambiguous,
its meaning must be primarily derived from the statutory text itself. Cockle, 142
Wn.2d at 807. But when the statutory language is susceptible to more than one
reasonable interpretation, it is considered ambiguous. ki. at 808. When a statute
is ambiguous, a reviewing court looks to the principles of statutory construction,
legislative history, and relevant case law. ki. “The primary goal of statutory
construction is to carry out legislative intent.” ki. at 807. Although this court gives
deference to the interpretation of the agency charged with implementing the
statute,2 the agency’s interpretation is not binding. Cockle, 142 Wn.2d at 812.
Deference is inappropriate “when the agency’s interpretation conflicts with a
statutory mandate.” k~.
ANALYSIS
The Department argues on appeal that these three employers are not
entitled to wage reimbursement benefits for any days preceding the date on which
the employees’ medical providers received and approved specific written job
descriptions. It argues that retroactive approval is not permitted under RCW
2 The Department of Labor and Industries is the department charged with implementing the Industrial Insurance Act. RCW 51.08.040; see also Dept of Labor & Indus. v. Slaugh, 177 Wn. App. 439, 452, 312 P.3d 676 (2013).
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51 .32.090(4)(b)3 The employers argue that RCW 51 .32.090(4)(h), which governs
wage reimbursement, permits retroactive approval.
Subsection 4(b) provides that if an employer requests certification from a
medical provider that an injured worker can perform light duty work and provides
a statement of the work available, then “[t]he physician . . . shall then determine
whether the worker is physically able to perform the work described. The worker’s
temporary total disability payments shall continue until the worker is released by
his or her physician . . . for the work, and begins the work with the employer of
injury.” RCW 51 .32.090(4)(b) (emphasis added).
This temporal language supports the Department’s position that a medical
provider must approve a specific job description of the available light duty work
before the employee begins the work. And if this approval must precede the work,
then a medical provider’s retroactive approval of a formal job description would be
inconsistent with the statutory framework.
But, as the employers correctly note, subsection 4(b) does not specifically
address the employer’s entitlement to wage reimbursement. Subsection 4(h)
does. And that provision provides, in relevant part:
In no event shall an employer receive wage subsidy payments or reimbursements of any expenses pursuant to this subsection (4) unless the worker’s physician or licensed advanced registered nurse practitioner has restricted him or her from performing his or her usual work and the worker’s physician or licensed advanced registered nurse practitioner has released him or her to perform the work offered.
~ This position is inconsistent with the Department’s position below. The Department denied wage reimbursement requests only for the days preceding the employer’s transmittal of a formal written job description to the medical provider, It did not deny benefits for the delay in obtaining that medical provider’s approval. The Department has not explained the inconsistency in its statutory interpretation. -10- No. 79395-1-I/li
RCW 51 .32.090(4)(h). The temporal language of subsection 4(b) does not appear
in subsection 4(h), suggesting that while an employer’s entitlement to wage
reimbursement is conditioned on a medical provider’s approval of the job offered,
that entitlement is not based on whether that approval precedes the work.
Subsection 4(h) merely requires that a provider identify physical restrictions and
release the employee to perform modified or light duty work if offered by the
employer. It does not specify whether the “release” refers to the general release
outlined in the APFs or to the provider’s approval of a specific written job
description of the light or modified duty work.
Even if it refers to the approval of a specific job description, subsection 4(h)
does not specify when this approval must occur. On one hand, the Department
contends that the legislature’s use of the past tense in the phrase “has released
[the employee] to perform the work offered” indicates that an offer has to be made
to the employee and must be conditioned on the medical provider’s prior approval.
But on the other hand, as the employers argue, the language of the statute
could reasonably be interpreted to mean that a medical provider need only approve
the specific job description at some point before the employer seeks wage
reimbursement benefits from the Department but not necessarily before the
employee begins performing the job.
We conclude that the language of subsections 4(b) and 4(h), when read
together, is ambiguous. We therefore must refer to principles of statutory
construction, the statute’s legislative history, and relevant case law, with the goal
of carrying out the legislative intent of the Stay-at-Work Program.
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First, subsection 4(a) provides clear legislative findings:
The legislature finds that long-term disability and the cost of injuries is significantly reduced when injured workers remain at work following their injury. To encourage employers at the time of injury to provide light duty or transitional work for their workers, wage subsidies and other incentives are made available to employers insured with the department.
RCW 51.32.090(4)(a) (emphasis added). We give great deference to the
legislature’s factual findings. Wash, Off Highway Vehicle Alliance v. State, 176
Wn.2d 225, 236, 290 P.3d 954 (2012). “Legislatures must necessarily make
inquiries and factual determinations as an incident to the process of making law,
and courts ordinarily will not controvert or even question legislative findings of
facts.” j4. (quoting City of Tacoma v. O’Brien, 85 Wn.2d 266, 270, 534 P.2d 114
(1975)).
If the legislature has determined that, from a policy perspective, it is
preferable to entice employers to allow injured workers to “remain” at work “at the
time of their injury,” then the Department’s interpretation of the statute—requiring
the employee to stop all work until a medical provider has received and approved
a specific written job description—undermines this legislative goal. Subsection
4(a) supports the employers’ interpretation that retroactive approval of the job
description is permissible if the provider has released the employer to remain at,
or return to, work in a light or modified duty job.
Second, this court has previously stated that a delay in an employee’s return
to work does not conform to the legislative intent of the statute. See Cascadian,
185 Wn. App. at 651 (reasoning that a three-day waiting period for receipt of wage
reimbursement benefits did not conform to the legislative intent because “the
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statute’s language indicates the legislature’s intent to encourage uninterrupted
employment” and that ‘[tjhe subsidies ‘encourage employers at the time of injury’
to provide light duty or transitional work for their injured workers”). Our Supreme
Court recognized that any delay in an injured employee’s return to some work is
contrary to the legislative intent, which supports the trial court’s interpretation of
the statute. After all, the wage reimbursement is a part of a “stay-at-work” program,
not a “return-to-work” program.
Third, the Department’s interpretation of the statute below would not
advance the valid safety concerns it has articulated on appeal. The Department
contends that prohibiting retroactive approval of the work offered to injured
employees is necessary to ensure that those employees are not put into jobs they
are incapable of physically performing. But the Department did not deny the
employers’ wage reimbursement requests until the medical providers approved
specific written job descriptions of the light or modified duty work; it denied the
requests only until the employers transmitted the job descriptions to the providers.
If the Department was concerned about workers performing tasks not explicitly
approved of by their providers, it would make little sense to approve wage
reimbursement on the date the providers receive, rather than approve, the specific
written job descriptions. The inconsistency in the Department’s interpretation of
RCW 51 .32.090 undermines the credibility of its safety argument.
Moreover, the Department’s concerns can be adequately addressed by
requiring the employer to ensure that any injured employee has been medically
released to stay at, or return to, work post-injury before allowing that employee to
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start any light duty work. The practice of obtaining an APF from an injured
employee’s medical provider, which sets a date on which the employee may
physically work and identifies specific restrictions for such work, has historically
sufficed to ensure employees are not forced into jobs their injuries prevent them
from safely performing.
In light of the legislature’s stated goals, we conclude that RCW 51 .32.090
does not render an employer ineligible for wage reimbursement if it obtains
retroactive approval of a specific light duty job description, as long as the injured
employee has been medically released to work before he or she begins that work.
In this case, medical providers for both Briseno and Gonzalez Hernandez
released them to work a light or modified duty job before they actually began the
work. The medical providers for both Briseno and Gonzalez Hernandez
retroactively approved the written job descriptions for work that they had been
offered and that they had been performing since the date of their release to light
duty work. We conclude that the trial court correctly directed the Department to
pay Kemp West and One Way Plumbing the unpaid wage reimbursement benefits
from the date the employees were released to work.
The record relating to Sturgeon differs significantly. Sturgeon became
eligible for time loss compensation on September 10, 2014. His medical provider
initially restricted him from returning to work in any capacity until October 20, 2014.
Sturgeon, however, began working in a modified light duty job on September 16,
2014, without any medical release to do so. During a follow-up visit on September
22, 2014, Sturgeon’s medical provider released him to work in a modified light duty
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job as of that date. Thus, Sturgeon—unlike Briseno or Gonzalez Hernandez—did
not have a medical release to work until September 22, 2014. The trial court’s
finding that Sturgeon returned to work on September 16, 2014, in ajob “consistent
with the restrictions his attending provider had placed on him on September 12,
2014,” is not supported by the evidence.
In March 2015, AMS asked Sturgeon’s medical provider to retroactively
approve Sturgeon’s light duty work. Contrary to the September 12 and September
22 APEs, the medical provider approved Sturgeon to work in a modified or light
duty capacity retroactive to September 16, 2014. But Sturgeon’s medical provider
had not released him to perform any work, let alone modified light duty work, when
Sturgeon began working on September 16, 2014. While wage reimbursement
based on retroactive approval of a job description is permissible under
RCW5I.32.090(4)(h) when the medical provider has released the employee to
perform light duty work, it is impermissible if there has been no such release at the
time the employee began that work. ~ RCW 51 .32.090(4)(j) (“An employer who
directs a claimant to perform work other than that approved by the attending
physician and without the approval of the worker’s [medical provider] shall not
receive any wage subsidy or other reimbursements for such work.”)
Because Sturgeon was not released to perform any light or modified duty
work until September 22, 2014, the Department properly denied Sequoyah
Electric’s request for wage reimbursement from September 16-19, 2014, and the
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trial court erred when it directed the Department to reimburse Sequoyah Electric
for these dates.4
We affirm the court’s orders directing reimbursement to Kemp West and to
One Way Plumbing but reverse the order directing reimbursement to Sequoyah
Electric.
Affirmed in part, reversed in part.
WECONCUR:
~ Our conclusion does not modify the reimbursement that Sequoyah Electric received from the Department. The Department properly reimbursed Sequoyah Electric for the dates Sturgeon worked in a light duty capacity between September 22 and October 13.
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